Lies, Damned Lies, and Journalism: Why Journalists Are Failing to Vindicate First Amendment Values and How a New Definition of “The Press” Can Help

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Edelson, Chris

Abstract

This Article identifies a specific problem—journalists who fail to
provide the public with the accurate information needed to foster
informed public opinion—and offers a specific solution: defining “the
press” to provide protections and prestige only to those whose work
actually advances First Amendment values.
American journalistic norms facilitate lying by politicians,
candidates for office, and other public figures. Because many
journalists are committed to the ideal of balance above truth, they are
often incapable of calling out lies. Instead, they create a false
equivalence by suggesting there are two sides to every argument. I
call this the “balance trap” problem—journalism that insists on
presenting, without comment, two sides to every story, even when one
side is demonstrably false. Politicians and other public figures are
able to exploit this reality by making false statements with impunity,
secure in the knowledge that journalists will not expose their
deceptions. This Article does something new by describing a definition of the
press that is based on specific examples of work journalists are doing
and proposing a way to assess whether this work advances First
Amendment values of truth and democratic competence. In addition,
this Article does something new by identifying a central role for
journalists themselves in defining press membership.
Other scholars who believe that members of the press deserve
specific protections seek to define press membership primarily
through courts or legislatures.
Ultimately, the goal of this Article is to give meaning to Oliver
Wendell Holmes’s assertion that “the real justification of a rule oflaw is that it helps to bring about a social end which we desire.”
Replacing balance trap journalism with journalism that gives
Americans the accurate information they need to make informed
decisions is a highly desirable social end. If we want to have a better
press corps, we must begin with a definition of the press that has the
potential to solve the balance trap problem by recognizing as
members of the press only those journalists whose work truly
advances First Amendment values.

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